283 F.

3d 1

NEPSK, INC., d/b/a Houlton Cable, Plaintiff, Appellant,

v.
TOWN OF HOULTON, Defendant, Appellee.
No. 01-1787.

United States Court of Appeals, First Circuit.

Heard December 3, 2001.
Decided March 13, 2002.

Roy T. Pierce, with whom Bruce C. Gerrity, and Preti, Flaherty, Beliveau,
Pachios & Haley, LLC were on brief, for appellant.
Patrick J. Scully, with whom Joseph J. Hahn, Kate S. Debevoise and
Bernstein, Shur, Sawyer & Nelson, P.A. were on brief, for appellee.
Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.
LIPEZ, Circuit Judge.

I.

This suit arises out of a dispute over a cable franchise for the Town of Houlton,
Maine ("Town"). In early 1999, the Town decided not to renew the franchise
held by NEPSK, Inc., d/b/a Houlton Cable ("Houlton Cable"). Instead, it sought
competitive proposals for a new cable franchise, and eventually awarded the
franchise to Houlton Cable's competitor, Pine Tree Cablevision Associates
("Pine Tree"). Houlton Cable then commenced this suit against the Town,
alleging multiple violations of the Cable Communications Policy Act of 1984,
as amended by the Cable Television Consumer Protection and Competition Act
of 1992 and the Telecommunications Act of 1996 (codified in pertinent part at
47 U.S.C. 521-573) (the "Act"). The district court granted the Town's motion
for judgment on the pleadings as to two counts of the complaint, based on
Houlton Cable's failure to respond to the motion as required by District of
Maine Local Rule 7(b). Several months later, the court entered summary
judgment for the Town on the remaining count of the complaint. Houlton Cable
challenges both decisions. We affirm.

On April 23, 1984, the Town entered into a cable franchise agreement with
Houlton Cable's predecessor, Houlton CATV, Inc.1 The franchise ran for a
period of 15 years, and was set to expire in April of 1999. Under federal law, 47
U.S.C. 546(a)-(g), Houlton Cable was entitled to initiate formal renewal
procedures by submitting a written request to the Town between April and
October, 1996. If neither Houlton Cable nor the Town took action within that
six-month window, the renewal process would be governed by the informal
procedures set out in 546(h).

Houlton Cable submitted a renewal proposal in November, 1997, well after the
expiration of the six-month period for initiation of formal procedures. For
several months, the Town took no action on the proposal. Then, in April of
1998, the Town Council voted to "invite new applications for the Houlton
Cable franchise." Consistent with the informal renewal procedures prescribed
by 546(h), the Town scheduled a public hearing to address the cable franchise
issue. Following that hearing, in February of 2000, the Town Council decided
not to renew Houlton Cable's franchise and to solicit bids from other providers.
Minutes from the public hearing and the Town Council's subsequent meeting
indicate that Houlton Cable's refusal to provide high-speed Internet access to its
subscribers was a major factor in the Town's decision to reject the renewal
proposal.

On March 31, 2000, the Town issued a Request for Proposals ("RFP")
soliciting proposals for a new, ten-year cable franchise. As the RFP made clear,
the Town did not believe it could support more than one franchise. Although it
had not undertaken any detailed analysis of the issue, the Town was aware that
no municipality in Maine including those much larger than Houlton was
served by more than one cable company. Accordingly, the Town explained in
the RFP that it planned to award only one franchise:

The Town of Houlton recognizes that it cannot award an exclusive cable

television franchise to any applicant. Nevertheless, the Town also recognizes
that the Town of Houlton can only feasibly support one cable television
franchise at one time. Accordingly, the Town intends to award only one cable
television franchise during the next ten year period, which will be the franchise
as a result of this RFP process.

The Town received proposals from two parties, Houlton Cable and Pine Tree.
After considering both proposals, the Town determined that Pine Tree's "most
closely [met] the needs of the Town as determined by public surveys and [the
earlier] public hearing." At a meeting in May, 2000, the Town Council voted to
reject Houlton Cable's proposal, and to pursue negotiations with Pine Tree.

Houlton Cable then initiated this suit against the Town. Count I of its complaint
alleged that the Town violated the Act by failing to comply with the formal
renewal procedures set forth in 546(a)-(g). Count II alleged that the Town had
conditioned the renewal of Houlton Cable's franchise on Houlton Cable's
willingness to provide high speed internet service to its subscribers. Such a
demand, Houlton Cable maintained, violated 47 U.S.C. 541(b)(3)(D), which
prohibits franchising authorities from requiring cable operators to provide
certain "telecommunication service[s]" as a condition of a franchise award, and
47 U.S.C. 544(e), which states that "[n]o State or franchising authority may
prohibit, condition, or restrict a cable system's use of any type of ...
transmission technology." Finally, Count III alleged that the Town
unreasonably refused to award Houlton Cable a "second" franchise, in violation
of 47 U.S.C. 541(a)(1).

After answering the complaint, the Town moved under Fed.R.Civ.P. 12(c) for
judgment on the pleadings as to Counts I and II. With respect to Count I, the
Town argued that, since neither Houlton Cable nor the Town had initiated
formal renewal procedures during the six-month window, the renewal process
properly was governed by the informal procedures authorized by 456(h). In
response to Count II, the Town contended that the Act did not apply
retroactively to invalidate the terms of the 1984 Franchise Agreement, which
provided that the decision as to renewal was committed to the Town's
discretion, and would be based in part on "the development of cable services."
In the alternative, the Town argued that high-speed internet access is neither a
"telecommunication service" nor a "transmission technology," and therefore is
not governed by 541(b)(3)(D)(a) and 544(e) of the Act.

Pursuant to Local Rule 7(b) of the District of Maine, Houlton Cable was
obligated to respond to the Town's motion within ten days.2 Houlton Cable did
not so respond, and, accordingly, was deemed to have consented to the motion.
Thus, on December 7, 2000 one day after the ten-day period had expired
the district court entered judgment for the Town on Counts I and II "per Local
Rule 7(b)."

10

Houlton Cable filed a motion under Fed. R.Civ.P. 59(e), asking the court to
reconsider and vacate its December 7 judgment. It argued that the district court
could not enter judgment on the pleadings without first satisfying itself that the
Town was in fact entitled to judgment as a matter of law. The court granted the
motion for reconsideration, but reaffirmed its initial judgment. Rule 12(c), the
court noted, does not prescribe any particular standard of decision; therefore, it
does not prohibit the entry of judgment on the basis of noncompliance with a
local waiver rule, without consideration of the merits of the motion. Given the

absence of a direct conflict between Federal Rule 12(c) and Local Rule 7(b),
the court concluded that it was entitled to enforce its local rule strictly.
11

The Town then moved for summary judgment on Count III of Houlton Cable's
complaint, arguing that the provisions of 541(a)(1) governing applications for
a second, competitive franchise did not apply to the Town's choice to award an
initial franchise to one provider rather than another. The court3 agreed, and
entered judgment for the Town on Count III. Houlton Cable filed a timely
notice of appeal, challenging the district court's December 7 grant of judgment
on the pleadings as to Counts I and II, its refusal to rescind that judgment under
Rule 59(e), and its grant of summary judgment on Count III.

II.
12

We turn, first, to the district court's decisions with respect to Counts I and II. In
granting the Town's motion for judgment on the pleadings, the court relied on
District of Maine Local Rule 7(b), which then provided:

13

Unless within ten (10) days after the filing of a motion the opposing party files
written objection thereto, incorporating a memorandum of law, the opposing
party shall be deemed to have waived objection.

14

Houlton Cable conceded that it did not comply with that rule, and that its failure
to file a timely response did not constitute "excusable neglect," permitting
reconsideration under Fed.R.Civ.P. 60(b)(1). Thus, Houlton Cable sought relief
under Fed. R.Civ.P. 59(e) on the ground that the district court's judgment was
based on an error of law. See Acevedo-Villalobos v. Hernandez, 22 F.3d 384,
390 (1st Cir.1994) (explaining that Rule 59(e) is the proper vehicle for a party
seeking to overturn a judgment on the basis of alleged legal errors).
Maintaining that Rule 12(c) requires a decision on the merits, it argued that the
district court erred as a matter of law when it granted the Town's motion for
judgment on the pleadings solely on the basis of a local "deemed waiver" rule
like Rule 7(b).

15

Houlton Cable renews that argument on appeal. We review the district court's
initial application of its local rule for abuse of discretion. CMM Cable Rep, Inc.
v. Ocean Coast Props., Inc., 97 F.3d 1504, 1528 (1st Cir.1996). We apply the
same standard to the district court's denial of a Rule 59(e) motion to alter or
amend the judgment. See Williams v. Poulos, 11 F.3d 271, 289 (1st Cir.1993).
However, the court's interpretation of Rule 12(c) of the Federal Rules of Civil
Procedure presents a legal question, which we review de novo. See Sec. &

Exch. Comm'n v. Sargent, 229 F.3d 68, 79 (1st Cir.2000).

16

Local Rule 7(b) and its predecessor, District of Maine Local Rule 19(c), have
been in existence for almost 20 years.4 Courts in the District of Maine routinely
apply such rules in situations where the opposing party fails to file an objection
to a motion, regardless of whether the motion is dispositive. See, e.g., Cardente
v. Fleet Bank, 796 F.Supp. 603 (D.Me.1992) (Rule 12(b)(6) motion to dismiss);
United Transp. Union v. Me. Cent. R.R. Co., 107 F.R.D. 383, 383-84
(D.Me.1985) (motion to dismiss for lack of personal jurisdiction and improper
venue); Gideon v. Adm'r, United States Small Bus. Admin., 102 F.R.D. 604
(D.Me. 1984) (motion to dismiss for lack of subject matter jurisdiction); see
also Desjardins v. Van Buren Cmty. Hosp., 969 F.2d 1280 (1st Cir.1992)
(affirming, against First Amendment challenge, district court's order requiring
defendant to make a public apology, on ground that district court properly
relied on Local Rule 19(c) to find that defendant waived objection to plaintiff's
motion to compel apology). Other districts throughout the country have adopted
similar rules5 to "ensure the orderly, efficient, and expeditious management of
the extensive motion practice" of the district courts. McDermott v. Lehman, 594
F.Supp. 1315, 1319 (D.Me.1984).

17

We have recognized that "[d]istrict courts enjoy broad latitude" in adopting and
administering such local rules. Air Line Pilots Ass'n v. Precision Valley
Aviation, Inc., 26 F.3d 220, 224 (1st Cir.1994); see also, e.g., Ramsdell v.
Bowles, 64 F.3d 5, 7 (1st Cir.1995) (acknowledging the district court's "great
leeway in the application and enforcement of its local rules"). In exercising that
discretion, district courts may, where appropriate, "demand adherence to
specific mandates contained in the rules." Air Line Pilots Ass'n, 26 F.3d at 224.
For example, in Corey v. Mast Road Grain & Bldg. Materials Co., Inc., 738
F.2d 11 (1st Cir.1984) (per curiam), the defendants moved for dismissal under
Fed.R.Civ.P. 12(b) for lack of personal jurisdiction. The district court granted
the motion on the basis of the plaintiff's failure to file a timely response, as
required by Local Rule 12 of the District of Massachusetts. It later denied the
plaintiff's Rule 60(b)(1) motion for relief from the judgment. We affirmed,
stating that "[t]he district court was entitled to insist upon compliance with its
local rule in these circumstances." Id. at 12 (citing In re Harbour House
Operating Corp., 724 F.2d 1, 2-3 (1st Cir.1983) (strictly applying Rule 3(b) of
the First Circuit Rules governing bankruptcy appeals)). Given plaintiff's failure
to establish that her tardiness was caused by excusable neglect, we concluded
that "the court could properly decline to excuse plaintiff's noncompliance with
the local rule." Id.; accord Stanciel v. Gramley, 267 F.3d 575, 579 (7th Cir.
2001) (affirming district court's grant of motion to dismiss on the basis of
noncompliance with local rule requiring response within 14 days); Tobel v. City

of Hammond, 94 F.3d 360, 361-62 (7th Cir.1996) ("Plaintiffs' lawyers admit

that they were not aware of the Local Rule. This is the end of the matter
because the district court clearly has authority to enforce strictly its Local
Rules, even if a default results."); Ghazali v. Moran, 46 F.3d 52, 53 (9th
Cir.1995) ("Failure to follow a district court's local rules is a proper ground for
dismissal.").
18

We reached a similar result in United States v. Proceeds of Sale of 3,888

Pounds of Atlantic Sea Scallops, 857 F.2d 46 (1st Cir.1988). There, the
government had filed a forfeiture action in Rhode Island district court, hoping to
obtain title to the value of certain sea scallops it had seized. Roughly one month
later, the defendant filed a combined "answer and claim," which the
government moved to strike as untimely. The district court granted the motion
to strike, based on the defendant's failure to respond within ten days as required
by Local Rule 12(a)(2). The government then moved for a default judgment on
the ground that the defendant's claim and answer had been stricken. The district
court granted that motion as well, reaffirming its decision on the defendant's
Rule 60(b) motion for reconsideration.

19

Again, we affirmed. As in Corey, we concluded that the district court did not
abuse its discretion in refusing to grant favorable reconsideration under Rule
60(b)(1) in the absence of a showing of excusable neglect. See id. at 49 (finding
that defendant's alleged reliance on erroneous advice from local counsel did not
excuse untimely filings). We continued: "We also agree with the district court
that a default judgment may stand even where there has been no showing of
substantial prejudice to the party benefitting from the default. A district court
simply may insist upon compliance with its local rules." Id.

20

As our holdings in Corey and Sea Scallops make clear, it is within the district
court's discretion to dismiss an action based on a party's unexcused failure to
respond to a dispositive motion when such response is required by local rule, at
least when the result does not clearly offend equity.6 See Pinto v. Universidad
De Puerto Rico, 895 F.2d 18, 19 & n. 1 (1st Cir.1990) ("We do not agree with
defendant that a court may, without notice, take a failure to respond to a motion
to dismiss as a default, warranting dismissal irrespective of substantive merit....
To be distinguished is where a court had ordered a memorandum, and, of
course, cases where a response was required by rule." (citing Sea Scallops and
Corey)). It is equally clear, however, that a district court cannot enforce its
local rules in a way that conflicts with the Federal Rules of Civil Procedure. See
Fed.R.Civ.P. 83(a)(1); Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989)
("Local district court rules cannot be construed in such a way as to render them
inconsistent with applicable provisions of the Federal Rules of Civil

Procedure.").
21

As Houlton Cable points out, we have identified such a conflict in the context
of motions for summary judgment filed under Fed.R.Civ.P. 56. Rule 56(e)
specifies that, if such a motion is unopposed, the district court may grant
summary judgment "if appropriate." "Under this provision it is clear that
`[w]here the evidentiary matter in support of the motion does not establish the
absence of a genuine issue, summary judgment must be denied even if no
opposing evidentiary matter is presented.'" Jaroma, 873 F.2d at 20 (quoting
Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 929 (1st
Cir.1983)). Thus, a district court may not automatically grant a motion for
summary judgment simply because the opposing party failed to comply with a
local rule requiring a response within a certain number of days. Rather, the
court must determine whether summary judgment is "appropriate," which
means that it must assure itself that the moving party's submission shows that
"there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Advisory
Committee Note to Rule 56 ("Where the evidentiary matter in support of the
motion does not establish the absence of a genuine issue, summary judgment
must be denied even if no opposing evidentiary matter is presented.").

22

Given the potential tension between Rule 56(e) and local rules such as the
District of Maine's Rule 7(b), we have recognized the need to interpret local
waiver rules "so as to preserve [their] scope and validity without running afoul
of the requirements of Rule 56." Jaroma, 873 F.2d at 20. To that end, in the
summary judgment context we read the "deemed waiver" provision of the local
rules to extend only to waiver of objection to the moving party's factual
assertions. By failing to file the required response within the time prescribed by
the applicable local rule, the non-moving party

23

waives the right to controvert the facts asserted by the moving party in the
motion for summary judgment and the supporting materials accompanying it.
The court will accept as true all material facts set forth by the moving party
with appropriate record support. If those facts entitle the moving party to
judgment as a matter of law, summary judgment will be granted.

24

Jaroma, 873 F.2d at 21 (emphasis added); see also McDermott, 594 F.Supp. at
1321 (same).

25

Houlton Cable argues that the district court's obligation to address the merits of
a motion for summary judgment should extend as well to Rule 12(c) motions

for judgment on the pleadings. It emphasizes that a party seeking judgment on

the pleadings under Rule 12(c) will make precisely the same arguments as a
party seeking summary judgment under Rule 56; namely, that "no material
issue of fact remains to be resolved and that he is entitled to judgment as a
matter of law." 5A Charles Alan Wright & Arthur R. Miller, Federal Practice
& Procedure 1368, at 518 (2d ed.1990); Lefebvre v. Comm'r, 830 F.2d 417,
419 (1st Cir.1987) (per curiam) (describing standard for Rule 12(c)). The only
difference is that a Rule 12(c) motion must be filed at the close of pleadings,
and must be based solely on the factual allegations in the complaint and answer,
whereas a motion for summary judgment may be filed at any time, and may be
supported by additional materials such as affidavits, depositions, and the like.
Compare Fed.R.Civ.P. 12(c) with Fed. R.Civ.P. 56. Such procedural
differences, Houlton Cable maintains, should not obscure the fundamental
similarity between the substance of a Rule 12(c) motion on the one hand, and a
Rule 56 motion on the other. Given that similarity, Houlton Cable insists that
the district court cannot rely on its local rule to grant a Rule 12(c) motion, when
it could not do the same if the motion had been filed under Rule 56.
26

Although that argument is not without force, it ignores an important and, in

our view, dispositive difference between the two federal rules. Unlike Rule
56, nothing in the text of Rule 12(c) compels the court to apply any particular
standard when deciding whether to grant or deny a motion for judgment on the
pleadings. Rule 12(c) provides that, "[a]fter the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the
pleadings." As the district court observed, the rule "poses no standard or regime
by which the Court shall decide the issues generated by the motion." By
contrast, Rule 56(c) specifically states that summary judgment "shall" be
granted "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." Moreover, Rule 56 explicitly addresses the
possibility that the non-moving party will not respond to the motion, and
provides that summary judgment may be entered in such circumstances only "if
appropriate." Fed.R.Civ.P. 56(e). Rule 12(c), on the other hand, does not
require the court to make any such determination before granting the motion.

27

Given Rule 12(c)'s silence on the subject, we cannot conclude that the district
court's strict enforcement of Local Rule 7(b) creates an impermissible conflict
with federal Rule 12(c). As the district court put it, "[t]here is simply no reason
contained in [Rule 12(c)] or its intendment to prevent an otherwise appropriate
and enforceable rule of default, i.e. Local Rule 7(b), from operating on a motion
under Rule 12(c) without consideration by the court of its merits." Accord

Tobel, 94 F.3d at 362-63 (affirming grant of motion for judgment on the

pleadings based on opposing party's failure to respond as required by local
rule); Ghazali, 46 F.3d at 54 (reasoning that standards governing summary
judgment motions do not apply to motions to dismiss, and holding that district
court did not abuse its discretion in granting motion to dismiss for
noncompliance with a local rule specifying requirements for response). We
agree, and hold that the district court did not abuse its discretion in insisting on
compliance with its local rule and in rejecting Houlton Cable's assertion of legal
error under Rule 59(e).
III.
28

We turn to Houlton Cable's claim that the district court erred in granting
summary judgment to the Town on Count III of the complaint. As noted, Count
III asserted a claim for relief based on an alleged violation of 47 U.S.C.
541(a)(1), which provides:

29

A franchising authority may award, in accordance with the provisions of this

subchapter, 1 or more franchises within its jurisdiction; except that a
franchising authority may not grant an exclusive franchise and may not
unreasonably refuse to award an additional competitive franchise. Any
applicant whose application for a second franchise has been denied by a final
decision of the franchising authority may appeal such final decision pursuant to
the provisions of section 555 of this title for failure to comply with this
subsection.

30

Section 555, in turn, authorizes "[a]ny cable operator adversely affected by any
final determination made by a franchising authority under section 541(a)(1)" to
appeal that decision to the federal district court in the district in which the cable
system is located. 47 U.S.C. 555(a).

31

As far as we can tell, the question whether 541(a)(1) creates a cause of action
for a cable provider that lost out in a competitive bidding process for a single
franchise is one of first impression. By its terms, 541(a)(1) governs only
applications for a "second" franchise. Thus, the parties agree that 541(a)(1)
does not speak to the Town's decision to award the initial franchise to Pine Tree
instead of Houlton Cable. Houlton Cable argues, however, that once the Town
decided to award a franchise to Pine Tree, it was obligated to determine
whether it also should award Houlton Cable an "additional competitive"
franchise. Because the Town readily admits that it never even considered that
question, Houlton Cable maintains that the outright denial of its franchise
proposal was "unreasonabl[e]" within the meaning of 541(a)(1).

32

The difficulty with that argument is that Houlton Cable never submitted an
application for a "second" franchise. Hence, the Town never refused such an
application, unreasonably or not. The RFP made clear that the Town was
soliciting bids for a single franchise. Houlton Cable's proposal submitted in
response to the RFP was, therefore, an application for that first, single
franchise. Nowhere in its proposal did Houlton Cable indicate that, if the Town
decided to grant the initial franchise to Pine Tree, Houlton Cable wished to be
considered for a second, competitive franchise.

33

Houlton Cable concedes as much. However, it maintains that such a desire can
be assumed whenever two or more providers submit applications for a single
franchise. In Houlton Cable's view, the losing co-applicant necessarily must be
considered as an applicant for a second franchise, whether or not it explicitly
asked for such treatment. We disagree. It is one thing to apply for a single
franchise; it is quite another to apply for a second, competitive franchise. The
latter may be far less profitable and, therefore, far less attractive. As a result, it
cannot be presumed that an applicant for a first franchise also wishes to be
considered for a second, competitive franchise.

34

Moreover, as the district court aptly observed, the information a franchising

authority and a reviewing court would consider in assessing an
application for a second franchise might be very different from the type of
information needed to weigh the strengths and weaknesses of competing
applications for a first franchise. The choice of one provider over another
implicates questions such as which provider offers the better package of
services, and at the best price. By contrast, the decision whether to award a
second franchise (once one has been established) raises a different set of
concerns: Could the municipality's infrastructure support two cable grids?
Would it be technically feasible for a second provider to build its own system
over the existing one? Cf. City of Los Angeles v. Preferred Communications,
Inc., 476 U.S. 488, 495, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) (noting that
factors such as "the present uses of the public utility poles and rights-of-way
and how [the cable operator] proposes to install and maintain its facilities on
them" were relevant to the question whether the City violated the First
Amendment by refusing to grant more than one cable franchise).

35

Of course, both sets of questions could be addressed at once, in the initial

selection process. But it does not follow that they must be, or that the Town is
obligated to raise the issue of a second franchise sua sponte. Rather, if an
applicant like Houlton Cable wishes to be considered for a second franchise in
the event it is not chosen for the first, it must make that desire explicit in its
proposal. Unless and until Houlton Cable submits and the Town refuses

an actual "request" for a "second" franchise, it has no cause for complaint under
541(a)(1). See I-Star Communications Corp. v. City of East Cleveland, 885
F.Supp. 1035, 1042 (N.D.Ohio 1995) (dismissing 541(a)(1) claim based on
plaintiff's failure to allege submission, and denial, of an application for a second
competitive franchise); cf. City Communications, Inc. v. City of Detroit, 685
F.Supp. 160, 162-63 (E.D.Mich. 1988) (holding that unsuccessful applicant for
single franchise could not bring First Amendment challenge to City's decision
to award only one franchise until it actually submitted an application for a
second franchise, accompanied by a feasibility study, and such application was
denied), aff'd on other grounds, 888 F.2d 1081 (6th Cir. 1989).
IV.
36

For the reasons set forth above, we affirm the judgment of the district court on
Counts I, II, and III.

37

So ordered.

Notes:
1

With the exception of certain services not relevant here, "a cable operator may
not provide cable service without a franchise." 47 U.S.C. 541(b)

Rule 7(b) has since been amended to permit response "within twenty-one (21)
days after the filing of a motion."

After the district court dismissed Counts I and II of Houlton Cable's complaint,
the parties consented to further proceedings in the case before a magistrate
judgeSee Fed. R.Civ.P. 73(b). For the sake of simplicity, we refer to both the
magistrate judge and the district court judge as the "district court" or the
"court."

Local Rule 19(c) provided: "Unless within 10 days after the filing of a motion
the opposing party files a written objection thereto, he shall be deemed to have
waived objection."

See, e.g., D. Ariz. LR 1.10(i) ("If a motion does not conform in all substantial
respects with the requirements of this Rule, or if the opposing party does not
serve and file the required answering memoranda, ... such non-compliance may
be deemed a consent to the denial or granting of the motion and the Court may
dispose of the motion summarily."); C.D. Ill. LR 7.1(B)(1) ("If no response

memorandum is filed within [14 days after service of a motion], the presiding
judge will presume there is no opposition and may rule on the motion without
further notice to the parties."); N.D. Ind. LR 7.1(a) ("Failure to file a response
[within 15 days after service of a motion] may subject the motion to summary
ruling."); D.N.H. LR 7.1(b) ("The court shall deem waived any objection not
filed in accordance [within 10 days from the date the motion was filed].");
D.N.M. LR-Civ. 7.5(b) ("Failure to serve (or file, if required by these rules) a
response in opposition to any motion constitutes consent to grant the motion.");
D. Nev. LR-Civ. 7-2(d) ("The failure of an opposing party to file points and
authorities in response to any motion shall constitute a consent to the granting
of the motion.").
6

We have cautioned that this discretion "is not unbridled."United States v.

Roberts, 978 F.2d 17, 20 (1st Cir.1992). In Roberts, we held that the district
court abused its discretion in denying the government's motion to reconsider an
order granting the defendant's motion to suppress certain evidence as
unopposed under Maine's Local Rule 19(c) (the predecessor to Rule 7(b)).
Unlike Houlton Cable, the government in Roberts argued that its failure to
comply with the local rule was caused by excusable neglect. We found that
argument persuasive, and concluded that "the lower court probably undervalued
the worth of the [government's] explanation." Id. at 22. We also noted that "it
would have helped" if the district court had considered several other factors in
deciding the government's motion to reconsider. Id. at 21-22 (listing factors
such as the degree of tardiness, the nature of the case, and "the effect of
granting (or denying) the motion on the administration of justice").
This case does not require us to determine whether and how Roberts might
apply where, as here, the tardy party failed to offer a "credible explanation of
what [went] wrong." Id. at 25. Houlton Cable does not argue that the district
court erred by failing to take into account equitable considerations like those
we outlined in Roberts. Instead, in both the district court and on appeal,
Houlton Cable has argued only that the court's strict application of Local Rule
7(b) creates an impermissible conflict with Federal Rule 12(c). As we explain
below, the district court did not err in rejecting that argument.